Holder’s Decision To Re-Investigate Torture Is Correct

Our guest blogger is Ken Gude, Associate Director of the International Rights and Responsibility Program at the Center for American Progress Action Fund.

ap_eric_holder_081119_mnIn an op-ed in Saturday’s New York Times, novelist Joseph Finder charged that Attorney General Eric Holder’s decision to appoint career prosecutor John Durham to begin a preliminary investigation into allegations of homicide and torture made by the CIA Inspector General “serves to delegitimize our government.” Finder claims Holder recklessly overturned the conclusion of the Alberto Gonzales-led Justice Department to close the criminal inquiry in a move that “doesn’t look much like justice; it looks like politics.”

It was a hallmark of the Bush administration to conflate politics and justice, but even on those terms, Finder has a peculiar understanding of the rule of law. Torture and murder by U.S. government officials is what has “delegitimized our government.” Far from any effort by the attorney general to enforce the law, the failure to investigate those crimes is what would cause further grievous harm to our country.

It’s disappointing that some have been persuaded by Finder’s allegations because they don’t withstand even minimal scrutiny. He accused Holder of being unconcerned that “these cases were exhaustively reviewed,” prior to the decision to close the first criminal investigation. And he also claims that “[i]f any new information has come out about these cases, any complaints about undue influence or any new witnesses, Mr. Holder hasn’t mentioned it.”

But the very first lines of Holder’s statement announcing the preliminary investigation read:

The Office of Professional Responsibility has now submitted to me its report regarding the Office of Legal Counsel memoranda related to so-called enhanced interrogation techniques. I hope to be able to make as much of that report available as possible after it undergoes a declassification review and other steps. Among other findings, the report recommends that the Department reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.

Finder obviously overlooked Holder’s actual statements in a rush to pass judgment on his motives. But it is simply willful ignorance to believe that it is “unlikely” that “high-level officials in the George W. Bush administration put their thumbs on the scale of justice.”

Seriously? Wasn’t Gonzales forced to resign in disgrace after his involvement in politically motivated firings of U.S. Attorneys? Didn’t we just learn of Karl Rove’s push for criminal investigations to help Republican candidates in advance of the 2006 mid-term elections?

Finder also appears confused about how the classification system works. He seems to be accusing Holder of withholding information from his own prosecutor when he says “[i]f that [OPR] report is critical of the legal competence of top lawyers at Justice who authorized the torture program in the first place, wouldn’t it have some bearing on Mr. Durham’s investigation?”

Yes, the OPR report has not yet been made public as it goes through the declassification review process. That means that people like me and Joseph Finder don’t yet have access to it and likely won’t ever get the chance to read it in full. But Mr. Durham was selected as the lead investigator in part because he has a high-level security clearance and most certainly has already read the report in its entirety. The timing of its eventual public release will have no bearing on his investigation.

Even absent all of these facts, it’s difficult to read politics into Holder’s decision. President Obama clearly wants to move forward. Many Democratic elected officials are uneasy with an investigation of the CIA. And Republicans, and people like Finder, are definitely going to accuse Holder of harming the security of our country. Surely the politically expedient choice would have been ignore the recommendation of the Office of Professional Responsibility and his own pledge to uphold the Constitution and the laws of the United States of America and simply sweep it all under the carpet.

That’s what Alberto Gonzales did. That’s what Joseph Finder wants. But that’s not what the rule of law means. No one denies that torture and murder are against the law. If the Department of Justice is to regain any credibility as an impartial enforcer of the law, it can no longer do nothing in the face of such obvious criminal activity.